Plaintiff’s Proof Against Exhauster Manufacturer Deemed Insufficient to Overcome Summary Judgment

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U.S. District Court for the Western District of North Carolina, Asheville Division, January 26, 2022

In this asbestos action, plaintiff Rita W. Barkley alleges that she contracted mesothelioma from laundering her father’s work clothes. Foster Wheeler, the only remaining defendant in this action, moved for summary judgment with respect to all of the plaintiff’s claims, and moved to exclude the affidavit of Richard Fay Carpenter, which was submitted in support of the plaintiff’s response in opposition of the motion for summary judgment.

First, the plaintiffs rely on prior deposition testimony of Ms. Barkley’s late father and on two of his former co-workers. The court noted, however, that the depositions were all taken in proceedings to which Foster Wheeler was not a party. In response, the plaintiffs argued that the defendants present at the depositions had similar motives to what Foster Wheeler would have had at the depositions, had it been present. The court disagreed, noting that the plaintiffs cannot use the depositions to establish that Ms. Barkley’s father had frequent, regular, and proximate exposure to asbestos attributed specifically to Foster Wheeler products. As such, no other defendant present at the depositions would have had any motivation to question the witnesses about the insulation of Foster Wheeler products, or Mr. Barkley’s interaction with such products.

Next, the plaintiffs contend that Foster Wheeler waived any objection to the use of the prior deposition testimony because the plaintiffs relied their intent to rely upon the testimony during discovery. The court rejected this argument, stating that the mere disclosure during discovery of an intent to rely upon a deposition (or any other inadmissible evidence) does not trigger a duty on the defendant to immediately assert any objections it may have to admissibility. Additionally, the court noted that even if the deposition testimony was admissible, the testimony failed to present evidence that Ms. Barkley’s father, and by extension Ms. Barkley, ever came into contact with asbestos attributable to a Foster Wheeler product. In response, the plaintiffs argued that the worksite in question required asbestos-containing insulation on all heating equipment and, as such, any Foster Wheeler exhauster that Ms. Barkley’s father worked around must have contained asbestos insulation. Moreover, the plaintiffs cited to a preliminary outline of the requirements for heat insulation at the jobsite, which specified that all exhausters contain asbestos insulation. The court disagreed with the plaintiffs’ assessment, finding that the plaintiffs did not present evidence of what was actually installed at the jobsite.

Finally, the plaintiffs submitted an affidavit from Richard Ray Carpenter who worked with Ms. Barkley’s father for a period of time. Foster Wheeler moved to strike the affidavit on the grounds that Mr. Carpenter only worked with Ms. Barkley’s father for three of the six years that Ms. Barkley’s father worked at the jobsite, and that Mr. Carpenter could not affirm that he observed Ms. Barkley’s father in proximity to a Foster Wheeler product. Foster Wheeler also argued that Mr. Carpenter could only speculate that Mr. Barkley’s father went home every day with dust on his clothing. Finally, Foster Wheeler noted that Ms. Carpenter’s affidavit included statements that contradict his prior sworn deposition testimony. The court agreed with Foster Wheeler and granted the motion to strike Mr. Carpenter’s affidavit.

Ultimately, the court concluded that the plaintiffs failed to present sufficient evidence to demonstrate that Ms. Barkley had frequent, regular, and proximate exposure to asbestos for which Foster Wheeler is legally responsible. Accordingly, the court granted summary judgment in favor of Foster Wheeler, dismissing all claims against the company.

Read the full decision here.